Damages In Civil Claims

Michael Ehline (Attorney at Law) gives expert video advice on: What are 'nominal damages' in a civil claim?; What are 'punitive damages' in a civil claim?; What are 'compensatory damages' in a civil claim? and more...

What are 'nominal damages' in a civil claim?

Nominal damages are damages which are really just sent to send a little message to people. In other words, a jury could award you a plaintiff's verdict, but find that you weren't really harmed, and simply give you a dollar. These types of damages are common in trespass cases, where somebody is liable for stepping on your grass, but your grass wasn't really harmed. So they could sue and get a dollar in nominal damages. That's an example of a nominal damage.

What are 'punitive damages' in a civil claim?

Punitive damages are damages that allow someone who is wronged by somebody to get damages to punish that person who caused the harm. Now in a normal negligence case you'd never be able to get punitive damages. For example, if someone slipped and fell at a store, you're not going to get punitive damages from the store owner unless you can show, for example, several other people had slipped at the same location. That the store manager never got the problem causing the slip fixed, for example, a leaky air conditioning unit. The store manager could have allowed that air conditioning unit to continue to drip on the floor even though several other people had fallen and cracked open their heads. Well in that case, you could seek an action for punitive damages in additional to your regular negligence damages for failing to fix it because you were so reckless in what you did that you need to be punished so you won't do it again.

What are 'compensatory damages' in a civil claim?

Compensatory damages are damages designed to compensate the plaintiff for the harm or for the breach in order to make them whole.

What are 'penal damages' in a civil claim?

Penal damages are damages usually under a contracts theory which are designed to punish someone for the breach. These types of damages are looked down upon and not usually upheld. However, there is a theory of law that allows you to recover what are known as liquidated damages. But in order for you to recover liquidated damages, you had to have known at the time of the creation of the contract what the damages would be if the other party breeched. If they're readily calculable at the time of the entering into the contract, you can have a liquidated damages provision which allows the other party to recover for that breech a specific amount of money. However, they cannot be just mere conjecture, and if they are based upon mere conjecture it will be deemed a penalty and therefore a court will not uphold that type of damage.

What are 'general damages' in a civil claim?

General damages' are damages designed normally to cover for the typical loss of a plaintiff in a personal injury claim. 'General damages' would include past, present, and future pain and suffering. Under a contract, the 'general damage' would include the expectancy, under the contract, of what the plaintiff would have gained under the contract. Usually, it would have been the profits, for example, under the contract.

What are 'special damages' in a civil claim?

Special Damages are usually economic damages. In the turk context they are economic loses such as loss wages, loss property, hospital and medical bills, etc.

What are 'consequential damages' in a civil claim?

Consequential damages are damages that are very difficult to prove unless you could show that they were forseeable, certain and unavoidable at the time of the entering into the contract. In normal contract cases you're only allowed to sue for your expectancy under the contract. However, if it was forseeable, certain and unavoidable at the time you entered into the contract, that if there was a breach this would cause a breakdown. For example: In the infrastructure of your business, which would then cause thousands of cars not to be put out into market. This is an example which would cost billions of dollars, then you may be able to sue for consequential damages. The seminal case on consequential damages is Hadley v. Baxendale, which is taught in all law schools. It is very, very difficult to prove consequential damages unless you can prove by writing, videotape or recording that the other party knew at the time of the entering into the contract these damages were certain, forseeable and unavoidable.

What are 'liquidated damages' in a civil claim?

Liquidated damages are damages that were readily calculable at the time of the entering into the contract that cannot be a penalty but simply a way of compensating the party, the non breaching party based upon a formula that was calculated at the time of the entering into the contract. So for example, there's a contract to produce 300 widgets and if only 299 widgets are produced, it's calculable that that would cost the plaintiff a dollar, there could be a per dollar unproduced widget liquidated damages clause in order for the non breaching party to be compensated as a form of liquidated damages. However, if there is an agreement that there's 299 widgets produced and there were supposed to be 300 and then there's a penalty of $300 dollars per each unproduced widget, that would be deemed an illegal and unenforceable penalty clause.

Do most civil claims go to trial to recover damages?

Most cases do not go to trial to recover damages. In fact, most cases don't go to trial, period. Most cases are settled out of court, usually by attorneys.

What is 'pain and suffering' in a civil claim?

Pain and Suffering in a Civil Claim pertains to the tort injuries. Any tort, unlike a contract, an injured victim can sue for their pain and mental anguish, as well as their suffering. So if someone gets shot in the leg and they're under extreme pain because of a severed nerve for example, a jury can calculate an award of pain and suffering often based upon what they feel is a fair amount for this person to have to suffer for the rest of their lives. So for example, it might be worth to a jury $30 dollars a day over this person's lifetime. So the jury would multiply that $30 dollars a day times the expected life of the plaintiff in order to award compensation for pain and suffering.

What is 'subrogation' in a civil claim?

Subrogation is a situation wherein your insurance company may pay to get your car fixed, for example, when you're in a car wreck. They may even pay for your hospital bills. But they may, as part of their contract, have an agreement with you that whatever you recover from the defendant later, they can then stand in your shoes, or subrogate, and take that money that would have gone to you in order to compensate them back.

What does 'preponderance of the evidence' mean in a civil claim?

The "preponderance of the evidence" standard is one of the lowest standards of evidence that there is. The "preponderance of the evidence" standard basically means this: if there was a scale and it tipped ever so slightly in the plaintiff's favor, the plaintiff wins.

How does a prior injury affect the value of my claim?

A prior injury can affect the value of your claim in many ways. Often the defense industry will argue that since there was a prior injury you're entitled to nothing. However it is well known and taught in law schools that you take your plaintiff as you find him. It's called the eggshell skull theory, so if humpty dumpty sat on a wall and had an eggshell skull and someone pushed him off and he broke it he would be entitled to recover to have his broken body put back together. It's irreverent that he has an unusually weak body. It could be a grandma, it could be Lou Ferrigno, it doesn't matter. If the grandma breaks every bone in her body she's entitled to recover the full amount. However what the defense industry will often do is argue that this is an exacerbation of the pre-existing condition and therefore whatever pain, suffering or injuries were pre-existing should be offset by the current condition in order to reduce the amount of damages they will have to pay.

What is included in a bodily injury claim settlement?

A bodily injury claim settlement is a general proposition involves a general release of all claims by one party against another forever. The body injury claim settlement will include damages for special and general compensation known as special and general damages and it could even cover punitive damages but it probably wouldn't be set forth like that in the settlement agreement. It would simply be an agreement that neither party admits wrongdoing but in order to avoid going to a court and spending tons of money on litigation we would rather settle this thing now.